People ex rel. Maurer v. La Vallee

12 A.D.2d 864, 209 N.Y.S.2d 881, 1961 N.Y. App. Div. LEXIS 13033

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1961
• Status: Published

Opinion

Appeal from an order of a Trial Term, Supreme Court, Clinton County, which dismissed a writ of habeas corpus. Relator was sentenced in the Nassau County Court in 1951 to 15- to 30 years for robbery, first degree; 10 to 20 years for assault; and 7 to 14 years for carrying a concealed weapon — all sentences to run concurrently. In addition, he was sentenced pursuant to section 1944 of the Penal Law to 10 to 15 years as a person armed while committing a felony, this sentence to run consecutively after the other sentences. Later in 1951 on relator’s own application in coram nobis the County Court held, that the additional sentence pursuant to section 1944 of the Penal Law was excessive. Relator was brought before the court for resentenee in 1959 and the punishment under section 1944 was reduced to a period of from 5 to 10 years to be served concurrently with the main sentence. Thus the total sentence of relator was reduced from a period of 25 to 45 years to a period of 15 to 30 years. On the writ of habeas corpus relator argues that the last sentence, which was the result of relator’s own application, was invalid because it “ interrupted ” a sentence under section 2188 of the Penal Law. The sentence in 1959 of which relator complains did not interrupt the main sentence which relator had not completed serving. It eliminated an additional sentence he had not started serving. Besides this, if the 1959 sentence is revoked, the prior sentence stands, since the 1959 sentence was an incident to relator’s attack on the main sentence and if it fails, the original sentence must stand. Order unanimously affirmed, without costs.